Velazquez v. Poole
| Decision Date | 30 October 2007 |
| Docket Number | No. 1:04-cv-00478-ENV-CLP.,1:04-cv-00478-ENV-CLP. |
| Citation | 614 F.Supp.2d 284 |
| Parties | Jose VELAZQUEZ, Petitioner, v. Thomas POOLE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Kevin James Keating, Law Office of Kevin J. Keating, Garden City, NY, Paul M. Gamble, Law Office of Paul Gamble, Esq., New York, NY, Michael Tarbutton, Queens County District Attorney's Office, Kew Gardens, NY, for Petitioner.
Johnnette Traill, Queens County District Attorney's, Kew Gardens, NY, for Respondent.
DECISION and ORDER
Jose Velazquez petitions for a writ of habeas corpus. By order dated July 30, 2004, District Judge Nina Gershon referred his pro se petition to Magistrate Judge Cheryl L. Pollak for a Report and Recommendation. Petitioner's current attorney of record was appointed to represent him on July 13, 2005. The docket was transferred to this Court on March 29, 2006. On May 11, 2007, Magistrate Judge Pollak issued her report and recommended that the petition be denied. For the reasons that follow, this Court adopts Magistrate Pollak's Report and Recommendation as the opinion of the Court.
Petitioner was imprisoned upon his conviction for events that took place on December 6 and 31, 1997. On the 6th, an assailant forced Jennifer Justiniano, a then 15-year-old girl, into his van at gunpoint and sexually assaulted her. On the 31st, an assailant pulled his van alongside Zahira Hussein, also a teenaged girl at the time, and attempted to force her into his van at gunpoint. Ms. Hussein was able to flee. After these attacks, both Ms. Justiniano and Ms. Hussein were independently shown photo arrays consisting of 12 photos. Both identified Jose Velazquez as the assailant and also identified his van as the vehicle used in the attacks. Petitioner was arrested, and both Ms. Justiniano and Ms. Hussein with defense counsel present separately identified him in a line-up as the assailant.
Velazquez was charged with sodomy in the first degree, attempted rape in the first degree, sexual abuse in the first degree, unlawful imprisonment in the first degree, endangering the welfare of a child, and two counts of menacing in the second degree. At trial, the prosecutor presented, inter alia, the out-of-court line-up identifications2 by both victims and serological evidence developed from evidence recovered from the first victim and from petitioner's van. Additionally, both Ms. Justiniano and Ms. Hussein again identified Velazquez as the assailant and identified his vehicle as the assailant's van. Ms. Justiniano also described the interior of the van and several objects found in the van.
Petitioner was convicted by a jury of these crimes on May 16, 2000. He was sentenced on June 5, 2000 to concurrent terms of imprisonment of 22 years on the charge of sodomy in the first degree, seven years on the charge of sexual abuse in the first degree, one and one-third to four years on the charge of unlawful imprisonment in the first degree, and one year on each of the two counts of menacing in the second degree, and one year on the charge of endangering the welfare of a child. Petitioner appealed the convictions through counsel and also interposed a pro se appellate brief arguing additional points. On November 18, 2002, the Appellate Division, Second Department affirmed petitioner's convictions, and, with regard to the photo arrays, the state appellate court found that
[t]he hearing court properly denied that branch of the defendant's motion which was to suppress identification testimony. One of the photographic arrays presented to the complaining witnesses was apparently lost sometime after trial, and the photographs of the lineup furnished to the appellant's counsel were of poor quality. These facts do not give rise to the inference that the photographic array and lineup were suggestive, since the hearing court had the opportunity to view the original photographs and determined that they were not unduly suggestive.
People v. Velazquez, 299 A.D.2d 500, 500-01, 749 N.Y.S.2d 740 (2d Dep't 2002). Petitioner's counsel moved to reargue the appeal, which was denied. Petitioner then sought leave to appeal to the New York Court of Appeals, which on February 3, 2003 was also denied. See People v. Velazquez, 99 N.Y.2d 620, 787 N.E.2d 1178, 757 N.Y.S.2d 832 (2003). Similarly, petitioner's pro se motion to the trial court to vacate his conviction was denied. Petitioner then sought appellate review of the trial court's post-verdict decision, which was denied by the Appellate Division on February 28, 2003. Petitioner brought this petition for a writ of habeas corpus on January 29, 2004. Of particular relevance, Velazquez asserted the claims of suggestive photo arrays and prosecutorial misconduct, among the several raised in his petition, throughout the state trial and appellate proceedings.
Section 636(b)(1), Title 28 United States Code provides for "a de novo determination of those portions of the report or specified proposed findings or recommendations [of a Magistrate Judge] to which objection is made" and a review for clear error of those portions to which no objection has been raised. In so doing, the district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). See also FED.R.CIV.PRO. 72(b). Counsel for petitioner requested a 45-day extension of the time to object to the Report and Recommendation, which Magistrate Judge Pollak granted on May 22, 2007. As of the date of this Decision and Order, petitioner's counsel has neither moved to be relieved nor made any further submission. As a result, no objection within the meaning of 28 U.S.C. § 636(b)(1) has been filed with respect to the findings and the recommendation of Magistrate Judge Pollak that the petition be dismissed. The standard of review is, therefore, that of clear error.
After a thorough, independent review of the record, this Court finds Magistrate Judge Pollak's Report and Recommendation to be comprehensive, well-reasoned, and without clear error. The Report and Recommendation denying the petition for a writ of habeas corpus is, accordingly, adopted in its entirety as the opinion of the Court.
Velazquez did, however, address a letter to this Court and to Magistrate Judge Pollak asking for reconsideration of portions of the Report and Recommendation. The letter was filed July 5, 2007, within the extended time period to object. This Court rejected the letter initially and refused to consider it because petitioner was (and continues to be) represented by counsel. When, however, petitioner's time to object expired without any submission by his counsel, in an abundance of caution, the Court decided that it would review the contentions set forth in petitioner's letter nonetheless.
Critically, even were the Court to treat Velazquez's letter as a proper objection, which it does not, the result — namely the denial of the petition — would remain the same. If petitioner's objection was proper, the Court's review of the claims in petitioner's letter must then be in accord with the de novo standard, which, of course, under 28 U.S.C. § 636(b)(1) does not require a de novo hearing. See United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). But, it does require that the district court not rely exclusively on the report and recommendation of the magistrate judge; the district court must conduct a review of the evidence itself and "arrive at its own, independent conclusion about those portions of the magistrate's report to which objection is made." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). The final determination thus rests with the district judge. See Raddatz, 447 U.S. at 676, 680-81, 100 S.Ct. at 2413, 2415, 65 L.Ed.2d 424. Moreover, mindful of petitioner's pro se status for purposes of this analysis as it accords de novo review, the Court will read his objection letter liberally and interpret it as raising the strongest arguments it suggests. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007); Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).
First, Velazquez purports to present new information that was not available to Magistrate Judge Pollak in support of his petition, that is, a New York Times article entitled "Man Jailed 2 Years Sues Over Queens Prosecutions", referring to criminal convictions secured in Queens County that were overturned on account of prosecutorial misconduct. Petitioner uses this article to bolster the argument he had made before Magistrate Judge Pollak: (1) that the photo arrays were suggestive, (2) that the prosecutor suborned perjury, and (3) that evidence was tampered with before and during his trial.3 Essentially, petitioner claims the newspaper article supports his claim because "[t]he evidence in this case [described in the article] deals with a photo array just like the one in my case where information was withheld." Yet, other than the general nature of the claimed misconduct and the fact that both cases were prosecuted by the Office of the District Attorney of Queens County, Velazquez offers not a scintilla of evidence that would connect his case or claim to the case or claims referenced in the article. Both the article and the case it references are totally devoid of any relevance or probative value. In short, petitioner offers no new admissible evidence for the Court's consideration. Consequently, all that remains for review, and solely on the record below, are...
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